Underground Infrastructure - August 2023 - 19

tively permanent, standing or continuously flowing bodies of
water qualify as WOTUS subject to federal regulation, and
specifically excludes channels through which water flows intermittently
or ephemerally.
On the other side of the argument, the test laid out by Justice
Anthony Kennedy did not require a " permanent hydrologic
connection. " Rather, Justice Kennedy would require that the
wetland possess a " significant nexus " necessary for restoring
and maintaining the chemical, physical and biological integrity
of navigable waters.
Under Kennedy's significant nexus test, if a wetland, either
alone or in combination with similar lands in a given area, significantly
affects the physical, chemical and biological integrity
of other covered waters more readily understood as " navigable, "
it could be subject to federal regulation.
During the first decade following the Rapanos decision, the
agencies largely relied on guidance and interpretation of the
1986 regulations, meaning that federal jurisdiction exists if a
water body meets either the relatively permanent standard or
the significant nexus standard.
In 2020, the Trump Administration set aside the Obama
Administration's WOTUS rule that never became effective because
it was issued at the very end of the Obama administration.
Ultimately, the Obama rule was replaced by President Trump's
" Navigable Waters Protection Rule, " which relied exclusively
on the " relatively permanent " standard, requiring a connection
between wetlands and traditionally navigable waters.
Trump's WOTUS rule was being actively litigated when Joe
Biden won the 2020 presidential election, and Biden's Justice
Department requested a voluntary remand in order to propose
a replacement. In December 2021, the Corps and EPA
proposed a rule that in many ways favored the Obama rule's
approach but also tried to capture Scalia's position.
In January of this year, the Supreme Court agreed again to
address the WOTUS issue given the increasing confusion, especially
over the " relatively permanent " and " significant nexus "
standards. The Court's decision was expected to finally settle the
longstanding confusion over the scope and reach of WOTUS.
2023 WOTUS rule
The preamble to the Biden WOTUS Rule attempted to argue
that the previous administration's rule was inconsistent with
the CWA - primarily that Trump's rule failed to appropriately
acknowledge or take account of the effects of climate change
on the chemical, physical and biological integrity of American
waters, and that exclusions to the rule were too broad.
However, recognizing that there were two opinions in
Rapanos, the Biden WOTUS Rule provides jurisdiction over
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Underground Infrastructure - August 2023

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